Surajmal Exports, Kolkata V. A.C.I.T Cir - 32,kolkata, Kolkata

ITA 410/KOL/2013

• Counselvise Citation: 41023514 RSA 2013
• Duration Of Justice: 2 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-10-2016
• Assessment Year: 2001-2002
• Appeal Filed On: 28-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K BISWAS
• Assessee Lawyers: AKHILESHWAR SHARMA
• Keywords: Bonafide belief; Retrospective amendment; Condonation of delay
• Section: 143(3); 80HHC; 147

Judgement Text

I.T.A. NO. 410/KOL./2013 ASSESSMENT YEAR: 2001-2002 PAGE 1 OF 8 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 410/KOL/ 2013 ASSESSMENT YEAR : 2001-2002 SURAJMAL EXPORTS,.................................. ............................APPELLANT 28/2, SHAKESPEARE SARANI, KOLKATA-700 017 [PAN : AALFS 5891 E] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ...........RESPONDENT CIRCLE-32, KOLKATA, 10B, MIDDLETON ROW, KOLKATA-700 071 APPEARANCES BY: SHRI AKHILESHWAR SHARMA, ADVOCATE , FOR THE ASSESSEE SHRI M.K. BISWAS, JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : NOVEMBER 26, 2015 DATE OF PRONOUNCING THE ORDER : NOVEMBER 30, 2015 O R D E R PER SHRI P.M. JAGTAP :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XIX, KOLKATA D ATED 10.04.2007 FOR THE ASSESSMENT YEAR 2001-02 AND THE SOLITARY ISSUE ARISING OUT OF THE SAME RELATES TO THE DISALLOWANCE MADE BY THE ASSESS ING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) ON ACCOUNT OF ASS ESSEES CLAIM FOR DEDUCTION UNDER SECTION 80HHC AMOUNTING TO RS.32,38 ,664/-. 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM, WHICH IS ENGAGED IN THE BUSINESS OF EXPORT OF YARN AND FABRI CS MANUFACTURED BY OTHERS. THE RETURN OF INCOME FOR THE YEAR UNDER CON SIDERATION WAS FILED BY IT ON 31.10.2001 DECLARING TOTAL INCOME OF RS.5, 89,920/-. IN THE ASSESSMENT ORIGINALLY COMPLETED UNDER SECTION 143(3 ) VIDE AN ORDER DATED 01.03.2004, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE I.T.A. NO. 410/KOL./2013 ASSESSMENT YEAR: 2001-2002 PAGE 2 OF 8 ASSESSING OFFICER AT RS.15,74,206/- AFTER ALLOWING THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80HHC BY TAKIN G INTO CONSIDERATION RECEIPTS FROM DEPB SOLD AMOUNTING TO RS.38,63,331/- . THE SAID ASSESSMENT WAS SUBSEQUENTLY REOPENED BY THE ASSESSI NG OFFICER ON 29.03.2006 IN PURSUANCE OF THE AMENDMENT MADE TO SE CTION 80HHC READ WITH SECTION 28(IIID) OF THE ACT BY THE TAXATIONS L AWS (AMENDMENT) ACT, 2005 WITH RETROSPECTIVE EFFECT FROM 1 ST APRIL, 1998. THE SAID AMENDMENT, WHICH WAS RELEVANT IN THE CASE OF THE ASSESSEE, AS CONTAINED IN 3 RD PROVISO WAS AS UNDER:- PROVIDED ALSO THAT IN THE CASE OF AN ASSESSEE HAVI NG EXPORT TURNOVER EXCEEDING RUPEES TEN CRORES DURING THE PREVIOUS YEAR, THE PROFITS COMPUTED UNDER CLAUSE (A ) OR CLAUSE (B) OR CLAUSE (C) OF THIS SUB-SECTION OR AFT ER GIVING EFFECT TO THE FIRST PROVISO, AS THE CASE MAY BE, SH ALL BE FURTHER INCREASED BY THE AMOUNT WHICH BEARS TO NINE TY PER CENT OF ANY SUM REFERRED TO IN CLAUSE (IIID) OF SECTION 28, THE SAME PROPORTION AS THE EXPORT TURNOVER BEAR S TO THE TOTAL TURNOVER OF THE BUSINESS CARRIED ON BY TH E ASSESESE, IF THE ASSESSEE HAS NECESSARY AND SUFFICI ENT EVIDENCE TO PROVE THAT,- (A) HE HAD AN OPTION TO CHOOSE EITHER THE DUTY DRAWBACK OR THE DUTY ENTITLEMENT PASS BOOK SCHEME, BEING THE DUTY REMISSION SCHEME; AND (B) THE RATE OF DRAWBACK CREDIT ATTRIBUTABLE TO THE CUSTOMS DUTY WAS HIGHER THAN THE RATE OF CREDIT ALLOWABLE UNDER THE DUTY ENTITLEMENT PASS BOOK SCHEME, BEING THE DUTY REMISSION SCHEME. SINCE THE EXPORT TURNOVER OF THE ASSESSEE DURING TH E YEAR UNDER CONSIDERATION WAS MORE THAN RS.10 CRORES AND THE CO NDITIONS AS STIPULATED IN CLAUSE (A) & (B) OF THE RELEVANT THIR D PROVISO, WERE NOT SATISFIED IN ITS CASE, THE DEDUCTION ALLOWABLE TO T HE ASSESSEE UNDER SECTION 80HHC WAS WORKED OUT BY THE ASSESSING OFFIC ER AT NIL AND THE TOTAL INCOME OF THE ASSESESE ACCORDINGLY WAS COMPUT ED BY HIM AT RS.38,28,581/- IN THE ASSESSMENT COMPLETED UNDER SE CTION 143(3) READ WITH SECTION 147 VIDE ORDER DATED 19.12.2006. I.T.A. NO. 410/KOL./2013 ASSESSMENT YEAR: 2001-2002 PAGE 3 OF 8 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3) READ WITH SECTION 147, AN APPEAL WAS PREFERR ED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) CHALLENGING THE DISALLO WANCE MADE THEREIN BY THE ASSESSING OFFICER ON ACCOUNT OF ITS CLAIM OF DE DUCTION UNDER SECTION 80HHC. DURING THE COURSE OF APPELLATE PROCEEDINGS B EFORE THE LD. CIT(APPEALS), A REQUEST WAS MADE BY THE ASSESSEE FO R KEEPING ITS APPEAL IN ABEYANCE ON THE GROUND THAT THE ISSUE AT THE REL EVANT TIME WAS SUBJUDICED BEFORE THE HONBLE SUPREME COURT UNDER P ETITION FILED BY THE INDIAN EXPORTERS GRIEVANCES FORUM. HOWEVER, KEEPING IN VIEW THAT THERE WAS NO ORDER PASSED BY ANY COMPETENT COURT STAYING THE APPELLATE PROCEEDINGS BEFORE HIM, THE LD. CIT(APPEALS) DID NO T ACCEPT THE REQUEST OF THE ASSESSEE FOR KEEPING ITS APPEAL IN ABEYANCE AND PROCEEDED TO DISPOSE OF THE APPEAL OF THE ASSESSEE ON MERIT. IN THIS REG ARD, HE FOUND THAT THE DISALLOWANCE MADE BY THE ASSESSING OFFICER ON ACCOU NT OF ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80HHC WAS IN CONFORMITY WITH THE PROVISIONS OF THE AMENDED LAW AS MADE APPLICABLE TO THE YEAR U NDER CONSIDERATION AND ACCORDINGLY UPHOLDING THE SAME, HE DISMISSED TH E APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APP EALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 2041 DAYS ON THE PART OF THE ASSESESE IN FILING THIS APPEAL BEFORE T HE TRIBUNAL. IN THIS REGARD, THE ASSESSEE HAS MOVED AN APPLICATION SEEKI NG CONDONATION OF THE SAID DELAY, WHICH IS DULY SUPPORTED BY AN AFFIDAVIT FILED BY ITS CHARTERED ACCOUNTANT. THE REASONS GIVEN BY THE ASSESESE FOR T HE DELAY IN FILING THIS APPEAL ARE AS UNDER:- 3. THE PROCEEDINGS COMPLETED U/S 143(3) OF THE ACT WAS REOPENED FOR REASSESSMENT U/S 147 OF THE ACT AND REASSESSMENT ORDER U/S 147 OF THE INCOME TAX ACT, 1 961 WAS PASSED BY THE ASSESSING OFFICER ON 19.12.2006. IN THE SAID REASSESSMENT ORDER, THE ASSESSING OFFICER HAS CATEGORICALLY NOTED THAT: IT MAY BE NOTED THAT THE CASE WAS REOPENED IN PURSUANCE OF THE AMENDMENT BROUGHT INTO SECTION 80HHC READ WITH SECTION 28(IIID) OF THE ACT BY THE I.T.A. NO. 410/KOL./2013 ASSESSMENT YEAR: 2001-2002 PAGE 4 OF 8 TAXATION LAWS AMENDMENT ACT 2005 WITH RETROSPECTIVE EFFECT FROM 01/4/1998. 4. THE APPELLANT, BEING AN EXPORTER WITH TURNOVER DURING THE RELEVANT ASSESSMENT YEAR EXCEEDING 10 CRORE, WA S NOT IN A POSITION TO DISCHARGE THE BURDEN CAST UPON IT UND ER THE THIRD PROVISO RETROSPECTIVELY INSERTED W.E.F 1-4-19 98 IN SECTION 80HHC OF THE INCOME-TAX ACT, 1961 BY THE TA XATION LAWS AMENDMENT ACT 2005 (HEREINAFTER THE AMENDMENT ACT) FOR AVAILING THE DEDUCTION UNDER SUB-SECTION (1) TO THE EXTENT OF PROFIT REFERRED IN SUB-SECTION (1B) OF SE CTION 80HHC OF THE INCOME-TAX ACT, 1961. 5. THE ASSESSING OFFICER, FOLLOWING THE AMENDMENT A CT DISALLOWED THE DEDUCTION U/S 80HHC OF THE ACT ON PR OFIT ON THE TRANSFER OF THE DUTY ENTITLEMENT PASSBOOK SCHEM E (DEPB). 6. THE APPELLANT CARRIED THE MATTER TO THE COMMISSI ONER OF INCOME-TAX (APPEAL). THE ISSUE INVOLVED IS PURELY L EGAL IN NATURE. THE INDIAN EXPORTERS GRIEVANCES FORUM (IEGF ), AN ASSOCIATION OF EXPORTERS OF WHICH THE APPELLANT IS A MEMBER FILED A WRIT PETITION IN THE HON'BLE HIGH COURT BOM BAY CHALLENGING THE CONSTITUTIONAL VALIDITY OF THE AMEN DMENT ACT. THE DEDUCTION U/S 80HHC OF THE ACT WAS DISALLO WED BY THE ASSESSING OFFICER MERELY ON THE GROUND ON THE AMENDMENT ACT. ON FILING OF THE TRANSFER PETITION B Y THE UNION OF INDIA WITH A PRAYER TO TRANSFER ALL THE PE TITIONS FILED IN VARIOUS HIGH COURT, THE HON'BLE SUPREME CO URT WAS SEIZED OF THE MATTER TO THE CHALLENGE TO THE CONSTI TUTIONAL VALIDITY OF THE AMENDMENT ACT. IT WAS IN THIS BACKG ROUND THAT THE APPELLANT REQUESTED THE COMMISSIONER OF IN COME- TAX (APPEAL) TO KEEP THE APPEAL IN ABEYANCE AS THE MATTER WAS SUB-JUDICE BEFORE THE APEX COURT. 7. THE REQUEST OF THE APPELLANT TO KEEP THE APPEAL IN ABEYANCE, WAS NOT ACCEDED BY THE CIT(A). THE CIT(A) IN ITS IMPUGNED ORDER DATED 10-04-2007 HAS DISMISSED THE A PPEAL OF THE APPELLANT. WHILE DISMISSING THE APPEAL, THE CIT(A) HAD MADE FOLLOWING OBSERVATIONS IN PARAGRAPH 8 OF T HE IMPUGNED ORDER: AS REGARDS GROUND NO. 1, SHRI MUNDRA AGREED THAT THE AO'S ACTION WAS IN CONFORMITY WITH THE PROVISIONS OF THE AMENDED LAW. IN FACT, THE APPELLANT IS CHALLENGING THE VALIDITY OF THE RETROSPECTIVE AMENDMENT. THIS IS AN ISSUE WHICH CANNOT BE DECIDED IN THE PROCEEDINGS BEFORE ME. I.T.A. NO. 410/KOL./2013 ASSESSMENT YEAR: 2001-2002 PAGE 5 OF 8 8. THE ISSUE BEING CHALLENGE TO THE VALIDITY OF THE 8. THE ISSUE BEING CHALLENGED TO THE VALIDITY OF T HE AMENDMENT ACT, COULD BE DECIDED ONLY BY THE CONSTIT UTIONAL COURT BEING THE HIGH COURT OR THE SUPREME COURT. TH IS ISSUE COULD NOT HAVE BEEN AGITATED BEFORE THIS TRIBUNAL. APPROACHING THIS TRIBUNAL BEFORE THE CONSTITUTIONAL VALIDITY IS DECIDED BY THE HIGH/SUPREME COURT WOULD RESULT I N DISMISSAL OF APPEAL FOR WANT OF JURISDICTION OF THI S TRIBUNAL TO DECIDE SUCH CONSTITUTIONAL QUESTIONS, WHICH WAS RELIED UPON BY THE APPELLANT. 9. IN THE FACTS AND CIRCUMSTANCES THAT APPELLANT AC CEPTED THE ADVICE OF HIS CA AND UNDER A BONAFIDE BELIEF, D ILIGENTLY PURSUED THE CHALLENGE TO THE CONSTITUTIONAL VALIDIT Y OF THE AMENDMENT ACT, THROUGH ITS ASSOCIATION IEGF BEFORE APPROACHING THIS TRIBUNAL. THE PETITIONS CHALLENGIN G THE CONSTITUTIONAL VALIDITY OF THE AMENDMENT ACT WAS TRANSFERRED BY THE APEX COURT TO THE GUJARAT HIGH C OURT. 10. THE GUJARAT HIGH COURT HEARD THE PETITIONS TRAN SFERRED TO IT AS PER THE APEX COURT ORDER. THE DIVISION BEN CH OF ACTING CJ SHRI BHASKAR BHATTACHARYA AND JUSTICE SHR I J.B. PATRA PASSED AN ORDER AND JUDGMENT DATED 02-07-2012 IN AVANI EXPORTS VS. COMMISSIONER OF INCOME-TAX [(2012 ) 23 TAXMANN.COM 62 (GUJARAT)] IN WHICH PARAGRAPH 25, 26 & 27 OF THE SAID JUDGMENT READS AS UNDER: 25. IN THE CASE BEFORE US, IT IS NOT ONE WHERE THE EXECUTIVE HAS FAILED TO CARRY OUT THE OBJECT OF THE PARLIAMENT NECESSITATING EXERCISE OF CONTROL BY RETROSPECTIVE AMENDMENT WHAT THE EXECUTIVE OUGHT TO HAVE ACHIEVED. IN THE PRESENT CASE, ACCORDING TO THE FINANCE MINISTER PRESENTING THE BILL, A VALID PIECE OF LEGISLATION HAS BEEN WRONGLY INTERPRETED BY THE TRIBUNAL. WE HAVE ALREADY POINTED OUT THAT ACCORDING TO THE EXISTING LAW, IF A VALID PIECE OF LEGISLATION IS WRONGLY INTERPRETED BY THE TRIBUNAL, THE AGGRIEVED PARTY SHOULD MOVE HIGHER JUDICIAL FORUM FOR CORRECT INTERPRETATION. AS POINTED BY THE APEX COURT IN THE CASE OF PRITVI COTTON MILLS LTD (SUPRA), THE LEGISLATURE DOES NOT POSSESS OR EXERCISE POWER TO REVERSE THE DECISION IN EXERCISE OF JUDICIAL POWER. THUS, WE ARE OF THE VIEW THAT THE PRINCIPLES LAID DOWN IN THE CASE OF R. C. TOBACCO (P) LTD. (SUPRA) HAS NO APPLICATION TO THE FACTS OF THE PRESENT CASE. THE IMPUGNED AMENDMENT GRANTING BENEFIT RESTRICTING IT TO A I.T.A. NO. 410/KOL./2013 ASSESSMENT YEAR: 2001-2002 PAGE 6 OF 8 CLASS OF ASSESSEE WHOSE TURNOVER IS LESS THAN RS. 10 CRORE IS PERMISSIBLE PROSPECTIVELY BUT THE WAY IT HAS BEEN ENACTED, IT TAKES AWAY AN ENJOYED RIGHT OF A CLASS OF CITIZEN WHO AVAILED OF THE BENEFIT BY COMPLYING WITH THE REQUIREMENTS OF THE THEN PROVISIONS OF LAW. 26. ON CONSIDERATION OF THE ENTIRE MATERIALS ON RECORD, WE, THEREFORE, FIND SUBSTANCE IN THE CONTENTION OF THE LEARNED COUNSEL FOR THE PETITIONERS THAT THE IMPUGNED AMENDMENT IS VIOLATIVE FOR ITS RETROSPECTIVE OPERATION IN ORDER TO OVERCOME THE DECISION OF THE TRIBUNAL, AND AT THE SAME TIME, FOR DEPRIVING THE BENEFIT EARLIER GRANTED TO A CLASS OF THE ASSESSEES WHOSE ASSESSMENTS WERE STILL PENDING ALTHOUGH SUCH BENEFIT WILL BE AVAILABLE TO THE ASSESSEES WHOSE ASSESSMENTS HAVE ALREADY BEEN CONCLUDED. IN OTHER WORDS, IN THIS TYPE OF SUBSTANTIVE AMENDMENT, RETROSPECTIVE OPERATION CAN BE GIVEN ONLY IF IT IS FOR THE BENEFIT OF THE ASSESSEE BUT N OT IN A CASE WHERE IT AFFECTS EVEN A FEWER SECTION OF THE ASSESSES. 27. WE, ACCORDINGLY, QUASH THE IMPUGNED AMENDMENT ONLY TO THIS EXTENT THAT THE OPERATION OF THE SAID SECTION COULD BE GIVEN EFFECT FROM THE DATE OF AMENDMENT AND NOT IN RESPECT OF EARLIER ASSESSMENT YEARS OF THE ASSESSEES WHOSE EXPORT TURNOVER IS ABOVE RS. 10 CRORE. IN OTHER WORDS, THE RETROSPECTIVE AMENDMENT SHOULD NOT BE DETRIMENTAL TO ANY OF THE ASSESSES. 11. THE APPELLANT INITIATED ACTION TO FILE THE APPE AL WITH TRIBUNAL BELIEVING THAT THE PETITION OF IEGF, AMONG OTHERS, IS DISPOSED BY THE GUJARAT HIGH COURT. WHEN THE APPELLANT APPROACHED THE IEGF, HE WAS TOLD THAT IEG F PETITION IS NOT INCLUDED IN THE BATCH OF PETITION D ECIDED BY THE GUJARAT HIGH COURT. THE APPELLANT WAITED FOR SO ME TIME IN THE HOPE THAT SIMILAR ORDER WOULD BE PASSED IN THE MATTER OF IEGF. WHEN THE APPELLANT FOUND THAT IEGF MATTER WAS PENDING IN THE APEX COURT, HE APPROACHED ADVOCATE MR. AKHILESHWAR SHARMA, ADVOCATE FOR HIS OPINION WHO HAD APPEARED FOR VARIOUS PETITIONERS IN THE GUJARAT HIGH COURT IN THE GROUP MATTER IN AVANI EXP ORTS VS. COMMISSIONER OF INCOME- TAX. THE ADVOCATE MR. SHARMA BY HIS OPINION ADVISED THE APPELLANT THAT TH E GUJARAT HIGH COURT WHILE PASSING THE JUDGMENT IN TH E I.T.A. NO. 410/KOL./2013 ASSESSMENT YEAR: 2001-2002 PAGE 7 OF 8 AVANI EXPORTS HAS ACTED AS JURISDICTIONAL HIGH COUR T FOR THE ENTIRE COUNTRY AND THEREFORE, THE APPELLANT MAY NOW FILE APPEAL IN THE ITAT KOLKATA RELYING UPON THE GUJARAT HIGH COURT JUDGMENT. THE APPELLANT THEREAFTER, FILE D THIS APPEAL. 12. THE APPELLANT HUMBLY SUBMITS TO THIS HON'BLE TRIBUNAL THAT THERE WAS NO WILFUL NEGLIGENCE OR MAL A FIDE INTENTION ON THE PART OF THE APPELLANT. THE APPELLA NT HAS BEEN PROSECUTING WITH DUE DILIGENCE WITH BONAFIDE B ELIEF THAT ISSUE BEING CONSTITUTIONAL IN NATURE HAS TO BE RESOLVED BY THE CONSTITUTIONAL COURT BEFORE THE SAM E CAN BE RELIED UPON BY THEM IN THEIR APPEAL IN THE TRIBU NAL. THE DELAY IS THE RESULT OF THE COMPLEX CIRCUMSTANCE S CREATED AFTER THE AMENDMENT ACT, ITS CHALLENGE BEFO RE VARIOUS HIGH COURT, THE ACTION OF THE UNION OF INDI A IN FILING THE VARIOUS TRANSFER PETITION IN THE APEX CO URT, THE ORDER OF THE APEX COURT TRANSFERRING THE PETITION T O THE GUJARAT HIGH COURT, THE FAILURE ON THE PART OF THE UNION OF INDIA IN NOT INCLUDING THE PETITION OF IEGF IN THE LIST OF CASES PENDING BEFORE THE APEX COURT AND THE VARIOUS HIGH COURT. THE BRIEF HISTORY OF LITIGATION SURROUNDING THE AMENDMENT ACT, ITS JOURNEY TO VARIOUS FORUMS AND TH E PRESENT STATUS OF THE IEGF PETITION IS GIVEN LATER IN THIS SUBMISSION. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES ON THE APPLICATION FILED BY THE ASSESSEE FOR CONDONATION OF DELAY IN F ILING THIS APPEAL. IT IS OBSERVED THAT IN THE IDENTICAL FACTS AND CIRCUMSTAN CES INVOLVED IN THE CASE OF MAGNUM EXPORT, THE COORDINATE BENCH OF THIS TRIBUNAL HAS CONDONED A SIMILAR DELAY OF 2078 DAYS ON THE PART OF THE ASSESSEE IN FILING ITS APPEAL FOR THE SIMILAR REASONS VIDE ITS ORDER DATED 08.02.2013 PASSED IN ITA NO. 1111/KOL/2012. THIS DECISION OF T HE COORDINATE BENCH OF THIS TRIBUNAL CITED BY THE LD. COUNSEL FOR THE A SSESESE THUS IS SQUARELY APPLICABLE IN THE PRESENT CASE AND THIS POSITION IS NOT DISPUTED EVEN BY THE LD. D.R. AT THE TIME OF HEARING BEFORE US, WE, THEREFORE, CONDONE THE DELAY ON THE PART OF THE ASSESSEE IN FILING THIS AP PEAL BEFORE THE TRIBUNAL AND PROCEED TO DISPOSE OF THE SAID APPEAL ON MERIT. 6. AT THE TIME OF HEARING BEFORE US, LD. REPRESENTA TIVES OF BOTH THE SIDES HAVE AGREED THAT THE ISSUE RELATING TO THE AS SESSEES CLAIM FOR I.T.A. NO. 410/KOL./2013 ASSESSMENT YEAR: 2001-2002 PAGE 8 OF 8 DEDUCTION UNDER SECTION 80HHC HAS TO GO BACK TO THE ASSESSING OFFICER FOR DECIDING ON MERIT KEEPING IN VIEW THE RELEVANT PROV ISIONS OF THE LAW AS ARE FINALLY APPLICABLE TO THE YEAR UNDER CONSIDERAT ION. IT IS ALSO OBSERVED THAT VIDE ITS ORDER DATED 08.02.2013 (SUPRA) PASSED IN THE CASE OF MAGNUM EXPORT, THE COORDINATE BENCH OF THIS TRIBUNA L HAS ALSO RESTORED A SIMILAR ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER VERIFYING THE RELEVANT FACTS FROM RECO RD AND APPLYING THE RELEVANT PROVISIONS OF LAW. WE ACCORDINGLY SET ASID E THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) ON THIS ISSUE AND RESTORE T HE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH BY APPLYING THE RELEVANT PROVISIONS OF LAW AND AFTER VERIFYING THE RELEVANT FACTS AND FIGURES FROM THE RECORD. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON NOVEMBER 30, 2015. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 30 TH DAY OF NOVEMBER, 2015 ORDER PRONOUNCED BY SD/- SD/- (S.S.V.R.) (W.A.) J.M. A.M. COPIES TO : (1) SURAJMAL EXPORTS, 28/2, SHAKESPEARE SARANI, KOLKATA-700 017 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-32, KOLKATA, 10B, MIDDLETON ROW, KOLKATA-700 071 (3) COMMISSIONER OF INCOME-TAX (APPEALS)- XIX, KOL KATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.